NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30178 16-30208 Plaintiff-Appellee, D.C. No. v. 2:13-cr-00322-JCC-1
LEWIS DEAN ARMSTRONG, MEMORANDUM* Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30215
Plaintiff-Appellant, D.C. No. 2:13-cr-00322-JCC-1 v.
LEWIS DEAN ARMSTRONG,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding
Submitted March 31, 2020** Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Lewis Armstrong appeals his conviction of aggravated sexual abuse of a
minor under 18 U.S.C. § 2241(c), and the government appeals his sentence. We
have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm in
part and reverse in part.
Because Armstrong's Fifth Amendment claims are raised for the first time
on appeal, we review each for plain error. See United States v. Houston, 648 F.3d
806, 813 (9th Cir. 2011) (government failing to correct false or perjured
testimony); United States v. Mitchell, 502 F.3d 931, 958 (9th Cir. 2007)
(government shifting the burden of proof); United States v. Makhlouta, 790 F.2d
1400, 1403 (9th Cir. 1986) (government improperly commenting on the
defendant’s right to remain silent).
Armstrong’s false testimony claim fails because there is no indication that
Long’s testimony was “actually false.” See United States v. Zuno-Arce, 339 F.3d
886, 889 (9th Cir. 2003) (a defendant will prevail on a false testimony claim where
“(1) the testimony (or evidence) was actually false, (2) the prosecution knew or
should have known that the testimony was actually false, and (3) [] the false
testimony was material.”). Armstrong’s claim under Brady v. Maryland, 373 U.S.
83 (1963), fails for the same reason. Armstrong’s burden shifting claim fails
because the prosecution did not suggest Armstrong was required to explicitly deny
2 the allegations against him. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.
1991) (“It is a common practice for one side to challenge the other to explain to the
jury uncomfortable facts and inferences.”). Finally, the government did not
improperly comment on Armstrong’s right to remain silent. Where a defendant,
after being advised of his Miranda rights, voluntarily chooses to make a statement,
the rule in Doyle v. Ohio, 426 U.S. 610 (1976), is inapplicable. See Leavitt v.
Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam).
The district court did not err in failing to hold a competency hearing. We
need not resolve the parties’ dispute as to the appropriate standard of review,
because even under Armstrong’s proposed standard he cannot prevail. A defendant
has a constitutional due process right not to be tried or sentenced if he is legally
incompetent. Pate v. Robinson, 383 U.S. 375, 378 (1966). A Pate hearing is not
required absent a “substantial” or “bona fide” doubt of competency. See de
Kaplany v. Enomoto, 540 F.2d 975, 979–83 (9th Cir. 1976) (en banc). Armstrong
did not offer evidence that introduced substantial doubt as to his competency to
stand trial. He did not contest Dr. Low’s conclusion that he was competent, nor did
he proffer any other evidence that rises to the level of incompetence necessitating a
hearing.
Even assuming Armstrong has standing, he cannot prevail on his ineffective
assistance of counsel claim. The Sixth Amendment guarantee of effective
3 assistance of counsel includes the right to counsel’s undivided loyalty. Wood v.
Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth Amendment conflict of
interest violation, the defendant must show that “his counsel actively represented
conflicting interests” and “an actual conflict of interest adversely affected his
lawyer’s performance.” Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). With respect to the first
prong, Armstrong “must prove actual conflict, not just a possibility of conflict,
‘through a factual showing on the record.’” United States v. Moore, 159 F.3d 1154,
1157 (9th Cir. 1998) (quoting Morris v. California, 966 F.2d 448, 455 (9th Cir.
1991)). Armstrong fails to do so here.
The district court did not err in declining to give a lesser-included offense
instruction. We review de novo whether the ‘“offense on which instruction is
sought is a lesser-included offense of that charged.’” United States v. Rivera-
Alonzo, 584 F.3d 829, 832 (9th Cir. 2009). A lesser-included offense is “an offense
necessarily included in the offense charged.” Fed. R. Crim. P. 31(c)(1). Armstrong
was charged under 18 U.S.C. § 2241(c), which requires that the defendant
knowingly engaged in a “sexual act”—in Armstrong’s case, “contact between the
mouth and the penis, the mouth and the vulva, or the mouth and the anus.” 18
U.S.C. § 2246(2)(B). The lesser-included offense Armstrong sought was abusive
sexual contact under 18 U.S.C. § 2244(a)(5). Abusive sexual contact requires that
4 the defendant knowingly engage in “sexual contact,” which is defined as “the
intentional touching, either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
18 U.S.C. § 2246
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30178 16-30208 Plaintiff-Appellee, D.C. No. v. 2:13-cr-00322-JCC-1
LEWIS DEAN ARMSTRONG, MEMORANDUM* Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30215
Plaintiff-Appellant, D.C. No. 2:13-cr-00322-JCC-1 v.
LEWIS DEAN ARMSTRONG,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding
Submitted March 31, 2020** Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Lewis Armstrong appeals his conviction of aggravated sexual abuse of a
minor under 18 U.S.C. § 2241(c), and the government appeals his sentence. We
have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm in
part and reverse in part.
Because Armstrong's Fifth Amendment claims are raised for the first time
on appeal, we review each for plain error. See United States v. Houston, 648 F.3d
806, 813 (9th Cir. 2011) (government failing to correct false or perjured
testimony); United States v. Mitchell, 502 F.3d 931, 958 (9th Cir. 2007)
(government shifting the burden of proof); United States v. Makhlouta, 790 F.2d
1400, 1403 (9th Cir. 1986) (government improperly commenting on the
defendant’s right to remain silent).
Armstrong’s false testimony claim fails because there is no indication that
Long’s testimony was “actually false.” See United States v. Zuno-Arce, 339 F.3d
886, 889 (9th Cir. 2003) (a defendant will prevail on a false testimony claim where
“(1) the testimony (or evidence) was actually false, (2) the prosecution knew or
should have known that the testimony was actually false, and (3) [] the false
testimony was material.”). Armstrong’s claim under Brady v. Maryland, 373 U.S.
83 (1963), fails for the same reason. Armstrong’s burden shifting claim fails
because the prosecution did not suggest Armstrong was required to explicitly deny
2 the allegations against him. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.
1991) (“It is a common practice for one side to challenge the other to explain to the
jury uncomfortable facts and inferences.”). Finally, the government did not
improperly comment on Armstrong’s right to remain silent. Where a defendant,
after being advised of his Miranda rights, voluntarily chooses to make a statement,
the rule in Doyle v. Ohio, 426 U.S. 610 (1976), is inapplicable. See Leavitt v.
Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam).
The district court did not err in failing to hold a competency hearing. We
need not resolve the parties’ dispute as to the appropriate standard of review,
because even under Armstrong’s proposed standard he cannot prevail. A defendant
has a constitutional due process right not to be tried or sentenced if he is legally
incompetent. Pate v. Robinson, 383 U.S. 375, 378 (1966). A Pate hearing is not
required absent a “substantial” or “bona fide” doubt of competency. See de
Kaplany v. Enomoto, 540 F.2d 975, 979–83 (9th Cir. 1976) (en banc). Armstrong
did not offer evidence that introduced substantial doubt as to his competency to
stand trial. He did not contest Dr. Low’s conclusion that he was competent, nor did
he proffer any other evidence that rises to the level of incompetence necessitating a
hearing.
Even assuming Armstrong has standing, he cannot prevail on his ineffective
assistance of counsel claim. The Sixth Amendment guarantee of effective
3 assistance of counsel includes the right to counsel’s undivided loyalty. Wood v.
Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth Amendment conflict of
interest violation, the defendant must show that “his counsel actively represented
conflicting interests” and “an actual conflict of interest adversely affected his
lawyer’s performance.” Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). With respect to the first
prong, Armstrong “must prove actual conflict, not just a possibility of conflict,
‘through a factual showing on the record.’” United States v. Moore, 159 F.3d 1154,
1157 (9th Cir. 1998) (quoting Morris v. California, 966 F.2d 448, 455 (9th Cir.
1991)). Armstrong fails to do so here.
The district court did not err in declining to give a lesser-included offense
instruction. We review de novo whether the ‘“offense on which instruction is
sought is a lesser-included offense of that charged.’” United States v. Rivera-
Alonzo, 584 F.3d 829, 832 (9th Cir. 2009). A lesser-included offense is “an offense
necessarily included in the offense charged.” Fed. R. Crim. P. 31(c)(1). Armstrong
was charged under 18 U.S.C. § 2241(c), which requires that the defendant
knowingly engaged in a “sexual act”—in Armstrong’s case, “contact between the
mouth and the penis, the mouth and the vulva, or the mouth and the anus.” 18
U.S.C. § 2246(2)(B). The lesser-included offense Armstrong sought was abusive
sexual contact under 18 U.S.C. § 2244(a)(5). Abusive sexual contact requires that
4 the defendant knowingly engage in “sexual contact,” which is defined as “the
intentional touching, either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
18 U.S.C. § 2246(3) (emphasis added). Where the operative definition of a “sexual
act” is contained in subsection (B) of 18 U.S.C. § 2246(2), abusive sexual contact
is not a lesser-included offense of aggravated sexual abuse as it lacks the specific
intent requirement. See United States v. Sneezer, 900 F.2d 177, 178–79 (9th Cir.
1990) (discussing subsection (A)); compare with 18 U.S.C. § 2246(2)(C), (D)
(requiring “an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person”).
The district court erred in determining that the mandatory minimum
sentence under 18 U.S.C. § 2241(c) violated the Eighth Amendment because it was
grossly disproportionate as applied to Armstrong. We review de novo whether a
sentence violates the Eighth Amendment. United States v. Shill, 740 F.3d 1347,
1355 (9th Cir. 2014). Because sexual crimes involving children cause grave
harm, United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per curiam),
Armstrong’s sentence is “proportionate to the crime for which [he] has been
convicted,” Solem v. Helm, 463 U.S. 277, 290 (1983). The sentence is not cruel
5 and unusual “simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S.
957, 995 (1991).
AFFIRMED in part, REVERSED in part.